Since last May, I’ve been writing about arrests in Jones County, Mississippi of several travelers who write on the site MotorHomeDiaries.Com. They were stopped while passing through. They were arrested under a typically wrongheaded and vague use of the disorderly conduct statute, charged with failure to follow the lawful order of a law enforcement officer. They were convicted in justice court and then appealed to County Court, where they will get a de novo appeal (for non-lawyers– an appeal where the appeal court starts from scratch, a complete do-over, rather than just reviews what previously happened).
They’ve filed a series of interesting motions to dismiss raising flaws in the arrest affidavits. The first notes that an essential element of an arrest for possession of beer in a dry county requires showing when the county held an election on whether the county would be dry. The other motions are more interesting, because they highlight the common police misunderstanding about disorderly conduct arrests– police officers think they can tell someone to do something, and when they don’t, arrest. One of the arrests was based on an order to put down a video camera. Period. The other affidavit alleges that the offense was committed “by arguing with the officer, refusing to put his hands behind his back, and by taking an aggressive stance toward the officer.”
The offense requires a refusal to follow a lawful order of an officer under circumstances that a breach of the peace was either intended or unlawfully risked by the defendant’s conduct where the officer had authority to then and there arrest any person for a violation of the law. This is three distinct elements, two of which can’t possibly have been met, according to the motions:
1) Refusal to follow a lawful order– here the “arguing” and the video camera have first amendment implications
2) where it could cause a breach of the peace– the video camera affidavit is risible on this point. I suppose the “taking an aggressive stance toward the officer” allegation is an attempt to meet this standard.
3) the officer has authority to arrest. This doesn’t mean the general authority of an officer to make an arrest, it requires that there must be something happening then and there that is about to give the officer authority to arrest someone– a fight or the like about to break out (or already occurring). An officer and a couple of guys standing on the roadside doesn’t meet this standard.
The motions are really clear in the way they break down the requirements and due process problems of disorderly conduct charges. There’s some caselaw in there, too; should be interesting reading for anyone who deals with misdemeanor charges. Here are the motions.